Dispute erupts over replacing farmland dwellings

A legal dispute has erupted over replacing dwellings on farmland in Oregon due to an ambiguously written provision of the state’s land use laws.

The specifics of the controversy are convoluted, but it centers on whether Oregon law allows landowners in “exclusive farm use” zones to rebuild dwellings that were torn down or destroyed by a natural disaster many years or even decades ago.

Landwatch Lane County, a farmland preservation group, believes that rebuilding after such a long interval is prohibited and goes against the intent of the Oregon Legislature.

If such delayed replacements were permitted, it would result in “non-conforming uses plastered all over EFU land,” said Lauri Segel-Vaccher, the group’s legal analyst.

“Are you really going to have a commercial farm and forest economy, or are you converting farm and forest land into residential uses?” she said.

Kay King, a landowner near Florence, Ore., wants to rebuild three dwellings on 100 acres of farmland that were removed more than 20 years ago.

Rebuilding the old homes will allow for the next generation of farmers to live on the land, but it’s unlikely to have widespread impacts, said Mike Gelardi, King’s attorney.

“I think that’s overblown,” Gelardi said.

The matter has ended up before the Oregon Court of Appeals, which is scheduled to hold oral arguments in the case on Jan. 9.

In 2013, Oregon lawmakers passed a bill that made it easier for farmers to replace buildings that had become dilapidated, or that had been destroyed or demolished.

The law basically stated that dwellings on farmland could be replaced as long as they once had modern amenities, such as indoor plumbing, electricity and heat. Previously, dwellings could only be replaced if they currently had those features.

Another requirement pertained to whether property taxes had been paid on the property, and how recently. This awkwardly-worded provision is at the heart of the legal dispute.

A permitting authority can allow replacement dwellings as long as they were subject to property taxes for the lesser of:

“A) The previous five property tax years unless the value of the dwelling was eliminated as a result of the destruction, or demolition in the case of restoration, of the dwelling; or

(B) From the time when the dwelling was erected upon or affixed to the land and became subject to assessment as described in ORS 307.010 unless the value of the dwelling was eliminated as a result of the destruction, or demolition in the case of restoration, of the dwelling.”

The government of Lane County interpreted this passage to mean that dwellings can be rebuilt at any time after they were eliminated, regardless of the five-year property tax rule.

After the county approved King’s application to rebuild the three homes, Landwatch Lane County objected to the decision before Oregon’s Land Use Board of Appeals, or LUBA.

The board rejected the county’s interpretation and overturned the dwelling approval, rejecting the concept that demolished or destroyed homes could be rebuilt after an indefinite period of time.

The five-year period was established as a maximum “look-back,” according to LUBA. In other words, dwellings could only be rebuilt if they were subject to property taxes within the past five years until they were destroyed or demolished within that time window. The provision also applied to homes that were built and taxed less than five years before they had to be replaced.

King has challenged this decision before the Oregon Court of Appeals, arguing the ruling ignores the state government’s own interpretation of the law.

In regulations that enacted the law, the Land Conservation and Development Commission stated that destroyed or demolished homes can be rebuilt “notwithstanding” the five-year property tax requirement, said Gelardi, the landowner’s attorney.

“It’s certainly confusingly worded in the statute, but that’s the intent,” he said.